Legend has it that during the 16th century Juan Ponce de Leon, the first governor of Puerto Rico and erstwhile conquistador, spent years looking for the fountain of youth in Florida.  While he did become the first European to “discover” Florida during his first such expedition to the territory, he never did find a fountain of youth; he instead died in Cuba from a wound inflicted on his last expedition to Florida.

What does a 16th century explorer have to do with a modern day economic giant like Toyota?  Both utilized technology to great advantage, both enjoyed a great deal of success, and both were credited with quickly conquering the Americas.  But while Ponce de Leon was felled by a poisoned arrow, as we have written before Toyota has been felled by a lack of internal awareness – of what the company knew and when it knew it (aka “Proactive ECA”) – which led to an inability to get ahead of events before such events overtook them.  The latest bombshell in the Toyota case alleges that the company may have deliberately withheld evidence in safety lawsuits, evidence in the form of a “secret electronic ‘Book of Knowledge’” the company maintained – which allegedly included information about design problems which was never disclosed in lawsuits against the company.

We don’t yet know if such ‘secret Books of Knowledge’ do in fact exist, although the chairman of the House Oversight and Government Reform Committee and a Toyota legal department whistleblower alleged they do.  If so, one wonders how Toyota could have either not known of their existence or believed they would never see the light of day.  Giving Toyota the benefit of the doubt that the powers-that-be were unaware of any such documents or of their relevance to particular lawsuits, however, one wonders exactly how they could have been so in the dark – and how other companies can ensure they do not find themselves in a similar situation.  Here are a few straightforward steps companies can take:

1. Ensure the right people can find relevant, internal information well before litigation.  In today’s business environment, we are all deluged by information on a daily basis – with the “Digital Universe” doubling in size every 18 months.  To make matters worse, most companies have not rolled out effective enterprise search, making information exceedingly difficult to find; one study found that on average it takes employees 38 minutes to find a single document.  Effective enterprise search allows sensitive information to be “findable” by those who should have access to it while securing such documents from those who shouldn’t.

2. Employ “Proactive ECA” to gain critical insight before litigation ensues.  As we noted recently, it would appear that Toyota may have relied on “Reactive ECA” – where ESI is not analyzed until it has been identified, then preserved, then collected, then sent to a third party for processing, then loaded into a review tool before it can finally be analyzed.  If so, this would not allow the company’s inside and outside counsel to get critical insight into the situation until well after a proceeding has started and taken on a momentum of its own.  Simply put, this is typically too late.  Instead, “Proactive ECA” can allow companies to get this critical insight before or during the collection phase, delivering key insight from the very outset of a matter.

3. Beware the shortcomings of keyword-only search.  As numerous studies have shown, keyword-only search is notoriously inaccurate and ineffective – correctly finding documents only 20% of the time.  This fundamental shortcoming with keyword-only search is extremely inefficient in the knowledge management arena and downright dangerous in eDiscovery.  Supplementing keyword-only search with conceptual search, however, is a far more accurate and comprehensive approach which can help ensure key documents are not missed by those who need them, regardless of their role at the company.

Unfortunately for him, Ponce de Leon did not have the luxury of sophisticated enterprise search and modern, US-style eDiscovery.  Had such tools been at his disposal, he may well have been able to find the fountain of youth and still be with us to this day.